Barrister and mediator Paul Sills continues his series, Changing the Way We Argue. In Part 2, below, he asks: Why go to War? Arguing can be a very positive form of connection and communication, but it requires a shift in paradigm, as well as good arguers to keep it that way, he writes. Read Part 1 here.

The current paradigm for dispute resolution is litigation – a rights-based adversarial model that reflects an “argument-as-war” metaphor. This paradigm has its origins in Greek philosophy, which introduced a focus on critical analysis and deductive reasoning. That is, the process of applying logical principles to given premises or general facts to derive a specific fact.

Why does litigation remain our go-to option for the resolution of disputes? How does it cater for cultural differences, needs, interests, emotions, feelings and changes in society? What happens to our arguments when we adopt this model?

We recognise 3 primary models for arguments[1]:

The arguments-as-war metaphor;

Arguments as proofs (e.g. mathematical equations);

Arguments as performances (politicians giving a speech, lawyers talking to a jury, debates).

The arguments-as-war model dominates both the legal system and our interactions in everyday life. In a militaristic sense, this model encourages strong arguments with a lot of punch.

By treating arguments as akin to war, we distort the conversation and:

Elevate tactics over substance;

Magnify differences, making it “us-versus-them”;

Focus only on the negative;

Provide for only one outcome: victory or defeat;

Personalise the argument by focusing on the behaviour of the other party rather than the merits of what they are saying;

Prevent or block opportunities for discussion, negotiation, collaboration or even compromise.

What does “winning an argument” actually mean in the context of litigation and arguments-as-war? Going to war over disputes does not advance society in any meaningful way, and means that the person who is willing to make a cognitive shift and to learn something is deemed to be the loser of the argument. That is, I learn something if you are able to persuade me to see things differently, such that I change my mind or my belief system. But when we reference my change of thinking back to the argument, I am the loser. On the other hand, the “winner” has not gained anything in a cognitive sense by convincing me of his or her beliefs.

Strong arguments result in people taking strong positions early, which then feel difficult (humiliating) to back out of. Staying flexible and open longer results in more authentic engagement and an agile strength that can adapt efficiently.

Part of the reason we favour the war model when we argue is that, while we know that human beings are fallible, we loathe to admit when we ourselves are wrong. So, arguing this way can be a form of self-preservation to avoid admitting any fault.

Arguing can be a very positive form of connection and communication, but it requires a shift in paradigm, as well as good arguers to keep it that way. A good arguer in this sense might view themselves as both the arguer and the audience. In doing so they can “observe” their own argument and determine whether it is a “good” argument or not. If it is – from an objective perspective – then they are heading in the right direction.

On average about 92% of all commercial cases settle before trial. In turn, these cases represent only a small portion of all commercial disputes: the balance are either not prosecuted or are resolved by way of negotiated outcome. So why hold on to the adversarial model and not focus on the skills needed to resolve disputes by way of negotiation, facilitation and mediation?

The legal profession would do well to see what took place in two other professions when the interests of the supplying profession were favoured over the customers’ interests for too long in a world where everyone has access to new ideas and like-minded customers via the internet:

The medical profession held on for too long to the “sickness” approach. While they largely weren’t noticing, the “wellness” industry worth billions of dollars sprung up;

Likewise, the accounting profession, broadly stated, held on to the “compliance” approach while the mentoring, coaching and advice business based on positivity diverted billions of dollars in revenue to itself.

Whether you believe in vitamins or life coaches is irrelevant. Consumers voted with their wallets to the financial detriment of the Luddites. Similarly, consumers are increasingly turning away from litigation and the arguments-as-war model toward more empowering and effective methods of dispute resolution.

Paul Sills is a barrister with over 20 years’ experience working in global litigation markets. Paul is also an accomplished business leader, having been involved in a diverse range of companies (as CEO or director) including the marine industry, global health care and international freight. Paul has been engaged in mediations both as a legal advisor and as a client since 1995 and as a mediator since 2010. These have included multi-parties and complex issues surrounding Treaty of Waitangi settlements, aviation disasters, leaky homes, construction and receiverships. With a unique understanding of the challenges businesses and individuals face and drawing on his years of commercial and legal experience, Paul provides timely and cost-effective solutions for his clients. Paul’s appointments include Associate Member of AMINZ, a member of the panel of mediators for the Marine Industry Association, Triathlon NZ Age Group Adjudicator for 2015 and 2016 and a member of the panel of mediators for the New Zealand Law Society. Paul is approved to assist with the Society’s Early Resolution Service, as well as standard track mediations. As a barrister Paul maintains both an active commercial litigation practice and a comprehensive mediation practice. Contact Paul at paul.sills@paulsills.co.nz or connect via Twitteror LinkedIn.